Delhi District Court
M/S Usg Construction Pvt. Ltd vs Municipal Corporation Of Delhi on 8 October, 2015
IN THE COURT OF SH. YOGESH KHANNA,
DISTT. & SESSIONS JUDGE (NORTHWEST),
ROOM NO. 401, ROHINI COURTS, DELHI.
MCD Appeal No. 10/12
M/s USG Construction Pvt. Ltd.
A company incorporated and registered
under the Companies Act
having its office at :
5A, Bhamashah Marg
Opp. Kirpal Bagh
Delhi - 110009.
Through its Director
Sh. Yogesh Mittal ........Appellant
Vs.
1. Municipal Corporation of Delhi
Through its Dy. Commissioner
Civil Lines Zone, Civil Lines
Delhi.
2. M/s R.M.G. Builders & Developers Pvt. Ltd.
having its office at :
Sector2A/67, Vaishali
Ghaziabad, UP.
Through its Director Sh. Aseem Anand
MCD Appeal No. 10/12 Page 1 of 29
3. Dr. (Mrs.) Lata Maitri
r/o 5A/2, Bhamashah Road
Delhi 110009 ..........Respondents
Date of institution : 17.07.2012
Date of hearing arguments : 01.10.2015
Date of Judgment : 08.10.2015
JUDGMENT
This Judgment shall govern the disposal of an appeal filed by the appellant u/s 347D of the DMC Act against the Judgment dated 18.06.2012 passed by the Ld. Addl. Distt. & Sessions Judge cum Presiding Officer, Appellate Tribunal, MCD, Delhi, in appeal bearing no. 389/AT/MCD/2011.
1. The brief facts germane for the disposal of the present appeal are that a plot of land admeasuring 8 bighas 11 biswas (8624 sq. yards) situated in Khasra No. 128 and 129 in the Revenue Estate of Mauja Rajpur Chawni, Delhi, was owned by Sh. Mohan Lal Goela. This property, later came to be known as 3, Pambari Road, Delhi110009 and now 5, Bhamashah Marg, Delhi110009. Sh. Mohan Lal Goela died on 14.05.1979 leaving behind a Will dated 10.02.1979 whereby he bequeathed MCD Appeal No. 10/12 Page 2 of 29 the aforesaid property in the name of his wife Smt. Sushila Devi, three sons namely Sh. Arun Shankar Goela, Sh. Lalit Shankar Goela and Sh. Kirti Shankar Goela. The property was mutated in the names of the above four legal heirs of deceased Mohan Lal Goela. The said plot of land admeasuring 8624 sq. yards was thus subdivided into four equal parts i.e. plot of 2156 sq. yards each and was numbered as 5A, 5B, 5C and 5D, Bhamashah Marg, Delhi110009. The plot no. 5A fell to the share of Sh. Arun Shankar Goela who got prepared a building plan, duly sanctioned on 10.06.2005 for a period of five years by the MCD in his name. However, the appellant herein purchased the area admeasuring 746 sq. yards in property no. 5A, Bhamashah Marg, Delhi110009, wherein the appellant had constructed four storeyed structure comprising of ground floor, first floor, second floor and third floor, with a space for parking in the basement. Whereas respondent no. 2 herein had purchased an area of admeasuring 1000 sq. yards in the said property no. 5A, but no construction was raised by it thereon. The respondent no. 3 herein had purchased 410 sq. yards and had built ground floor and a first floor thereon. MCD Appeal No. 10/12 Page 3 of 29
It is alleged that due to frivolous complaints made by the land mafia to extort money from the owners, the staff of MCD conducted survey/inspection of the property on various occasions since the year 2005 and on each occasion, it was reported by the MCD that the construction at the site was less than the sanctioned building plan.
On 08.09.2008, the Asstt. Engineer and Junior Engineer of the Building Deptt. of Civil Lines Zone, MCD, had visited the site and had made an exhaustive site plan, delineating a piece of land, stated to be government land, shown in yellow colour and had also drawn the lines on the boundaries of the plot as per the revenue record and the lines upto which construction could have been raised.
It is further alleged that on 21.11.2008, the officials of the MCD served a demolition order dated 20.11.2008 whereby the appellant has been asked to demolish the structure. Against the said demolition order, an appeal bearing no. 265/2008 was preferred by this appellant before the Appellant Tribunal, MCD, and the Ld. Appellate Tribunal had directed the MCD to conduct a joint inspection. The said joint inspection was held MCD Appeal No. 10/12 Page 4 of 29 on 30.01.2009, in which, no violation was ever pointed out. Even earlier on 08.09.2008, a detailed inspection report was prepared by the MCD wherein it was categorically stated that the FAR available for construction, as per the sanction plan is 133.33 and built up portion was only 92.2. It is further alleged that these inspections were necessitated because in the show cause notice and in the demolition order, it was not specified as to what was the offended portion and in what respect, the demolition order was passed.
It is further alleged that M/s RMG Builders and Developers Pvt. Ltd. i.e. respondent no. 2 herein moved an application, in the said appeal, before the Ld. Appellate Tribunal, MCD, seeking impleadment on the ground that part of the Plot No. 5 A, admeasuring 1000 sq. yards has been purchased by it through a sale deed dated 29.07.2005. Though the respondent no. 2 was not formally impleaded, but was given due hearing in the said appeal.
Vide an order dated 14.10.2009, the then Ld. Appellate Tribunal was pleased to set aside the demolition order.
2. The respondent no. 2 herein filed a writ petition bearing MCD Appeal No. 10/12 Page 5 of 29 WP(C) No. 12453/2009 and it was disposed of in term of the order dated 07.12.2010 passed by the Hon'ble High Court of Delhi. Thereafter, the Ld. Executive Engineer (B) Civil Lines Zone, MCD, Delhi, passed an order dated 17.06.2011 and directed the demolition.
Against this said order dated 17.06.2011, the appellant herein had preferred an appeal bearing no. 342/AT/MCD/2011 before the Ld. Appellate Tribunal, MCD, and whereas respondent nos. 2 & 3 also filed their separate appeals. However, all the three appeals were dismissed vide common Judgment dated 18.06.2012 passed by the Ld. Appellate Tribunal, MCD, Delhi, against which the present appeal has been preferred.
The notices of the present appeal were issued to all the three respondents. However, only respondent nos. 2 & 3 filed the reply wherein they supported their respective cases. The respondent no. 1 did not chose to file any reply.
3. Before coming to the grounds of the present appeal, it would be appropriate for me to refer to the basis upon which the Ld. Appellate Tribunal, MCD, had decided the appeals. MCD Appeal No. 10/12 Page 6 of 29
It was observed by the Ld. Appellate Tribunal, MCD, Delhi, that some of the FAR of respondent no. 2 herein has been eaten away by the appellant and the respondent no. 3 herein, but yet the Ld. Appellate Tribunal in its wisdom opined that the question of distribution of FAR has to be looked into by the Civil Court as it raise disputed issues, which per se, require evidence. The Ld. Appellate Tribunal refrained itself to further elaborate on this issue and held that the prayer made by the M/s RMG Builders and Developers Pvt. Ltd. i.e. respondent no. 2 herein qua distribution of FAR cannot be decided by this Tribunal and for this the parties may approach the Civil Court.
However, qua the demolition order dated 17.06.2011 passed against the appellant, the Ld. Appellate Tribunal held that the appellant had not approached the Tribunal with clean hands as it had not followed the conditions setforth in the order dated 14.10.2009 passed in appeal bearing no. 265/AT/MCD/2008 while setting aside the demolition order dated 20.11.2008. The said conditions are :
(a) that the appellant shall take the digital photographs of the existing construction (inner portion and outer portion) in the property in question from different MCD Appeal No. 10/12 Page 7 of 29 angles within 48 hours and shall file the same in the Office of Dy. Commissioner, Civil Lines Zone, within 48 hours thereafter. The same shall be kept in the record;
(b) that the appellant shall give a written undertaking duly signed by it before the Dy. Commissioner, Civil Lines Zone, to the effect that it shall not raise any construction or carry out any renovation or repair work or finishing work of any kind in the property in question till the decision by the quasijudicial authority;
(c) The appellant shall not part with the possession of the property in question or any part thereof to anyone either by way of sale or by way of renting out or by any other mode till the decision by the quasi judicial authority. The appellant shall file a written undertaking to this effect in the O/o Dy. Commissioner, Civil Lines Zone, MCD, along with photographs.
It is argued that such terms & conditions were impliedly accepted by the appellant as no appeal was filed against the Judgment dated 14.10.2009. However, none of the aforesaid conditions were ever complied with. The appellant neither filed any photograph nor gave any undertaking in compliance of the order dated 14.10.2009 and rather sold four units after the order dated 14.10.2009.
Furthermore, the Ld. Appellate Tribunal was of the view MCD Appeal No. 10/12 Page 8 of 29 that the Hon'ble High Court of Delhi while disposing of WP (C) No. 12453/2009 had directed the parties, including the appellant herein, to maintain status quo with regard to the title, possession and construction till the period of 2 months after the decision of the quasi judicial authority. Rather, the appellant herein sold one property on 19.04.2011 before the decision of the quasi judicial authority, in contempt of the orders of the Ld. Appellate Tribunal as also of the Hon'ble High Court of Delhi.
The Ld. Appellate Tribunal further observed that the appellant herein had sold the substantial portion of its share in the property and had virtually lost its right and interest in the same. The Ld. Appellate Tribunal further observed that the appellant herein had not disclosed this fact and a question of locus standi of the appellant company also has arisen.
The Ld. Appellate Tribunal also observed that the appellant did not appear before the Dy. Commissioner despite the directions of the Hon'ble High Court and hence, cannot allege that proper opportunity of being heard was not given to it by the quasi judicial authority. The appellant rather did not chose to file any reply during the proceedings before the quasi judicial MCD Appeal No. 10/12 Page 9 of 29 authority.
It was further observed that the appellant had raised the construction of basement, ground floor to the third floor in its portion, admeasuring 746 sq. yards. In the status report dated 02.02.2012, the ground coverage is shown as 33% whereas in the previous report dated 23.04.2009, it was described as 40%. However, despite the excess coverage, the construction is within the permissible limit of FAR.
The Ld. Appellate Tribunal further observed that though the appellant herein has relied upon the inspection reports dated 08.09.2008 and 30.01.2009 in its favour qua the ground coverage and FAR, but yet there are excess dwelling units, encroachments in setback, deviations against the sanctioned plan etc. and the appellant herein could not explain about these issues. In the inspection report dated 08.09.2008, it is stated that against seven sanctioned dwelling units, the appellant and respondent no. 3 herein, in two blocks, had constructed nine dwelling units. It was further observed that where in whole of the plot of 2156 sq. yards total 7 dwelling units were permitted as per sanctioned building plan, then raising of construction of MCD Appeal No. 10/12 Page 10 of 29 total 9 dwelling unit alone in 746 sq. yards area belonging to the appellant herein, cannot be treated as proportionate to FAR which would come to its own share and that certainly the appellant herein had raised unauthorized construction of excess dwelling units beyond the sanctioned limits.
However, the Ld. Appellate Tribunal observed that if any extra benefit to the appellant herein in the shape of dwelling units is available under the new Master Plan 2021, then it can be given only, if the regularization application is moved by completing all the necessary formalities and is allowed and that till the benefit of the Master Plan 2021 is given to the appellant herein, the appellant is bound to follow the building plan already sanctioned on 10.06.2005 qua dwelling units etc. The Ld. Appellate Tribunal also observed that though the appellant could apply for compounding of the deviations, in compliance of the Judgment dated 14.10.2009, but no detail has been furnished as to when such compounding was applied nor any copy of such application is annexed. Further, there is nothing on the record if such formalities required for compounding of deviations, were completed. Moreso, such MCD Appeal No. 10/12 Page 11 of 29 compounding, even otherwise, cannot be allowed unless two other coowners sign the same or give their NOC for it.
The plea of the appellant herein that the impugned order does not disclose the measurement and the area of the unauthorized construction, was rejected by the Ld. Appellate Tribunal on the ground that the appellant was having a sanctioned plan and in the impugned order it is specifically mentioned that the building plan was sanctioned for a single plot and mutual subdivision of a plot does not confer any right on the purchasers/owners to carry out construction work in their own way in violation of the sanctioned building plan/Master Plan 2021/DMC Act. The construction made on the plot is already known to the appellant which admittedly, is not as per the sanctioned plan and that it cannot be expected from the quasi judicial authority to give details of each and every deviation/unauthorized construction, brick by brick in its order. The Ld. Appellant Tribunal further observed that since quasi judicial authority has referred to the sanctioned building plan; the existing construction at the site as compared with the sanctioned building plan, then it can be easily be said that the MCD Appeal No. 10/12 Page 12 of 29 portion fallen beyond the sanctioned plan is liable to be demolished.
The Ld. Appellate Tribunal observed that the respondent no. 2 did provide the sanctioned building plan to the Ld. Appellant Tribunal and also a super imposed plan wherein in yellow portion, the construction made by the appellant was told to be unauthorized, hence, it was ordered that the shape, location, area and extent of deviation/unauthorized construction etc. can be ascertained easily by the execution officer while enforcing the impugned order at the site by taking help of the sanctioned building plan. Accordingly, it was held by the Ld. Appellate Tribunal that there is no vagueness in the order and hence, the impugned order was upheld.
4. I have heard Ld. Counsels for both the parties and have also perused the entire record carefully.
During the course of the arguments, the learned counsel for the appellant had referred to an order dated 14.07.2014 of my Ld. Predecessor in a connected appeal bearing MCD Appeal No. 09/12 titled as "Lata Maitri vs. MCD & Ors." wherein the Ld. Predecessor had set aside the order dated 17.06.2011 of the MCD Appeal No. 10/12 Page 13 of 29 quasi judicial authority qua respondent no. 3 herein on the ground that no show cause notice was ever issued upon respondent no. 3 and accordingly the said notice was yet again served afresh upon respondent no. 3 herein, in the Court itself on 14.07.2014. It is further argued that if the order dated 17.06.2011 qua the respondent no. 3 goes, then its benefit be also given to the appellant herein on following grounds viz. (a) the said impugned order was a common order passed against the appellant herein and respondent no. 3; (b) even the deviations and unauthorized constructions were also not bifurcated qua both the parties in the said impugned order dated 17.06.2011 of the quasi judicial authority and (c) the impugned demolition order does not show the deviations/unauthorized constructions made by the appellant on the floors on which the said deviations/unauthorized constructions exist.
The learned Counsel for the appellant has also referred to the show cause notice dated 11.11.2008 in respect of the deviations and construction of additional dwelling units and the demolition notice dated 20.11.2008 qua deviation(s) and MCD Appeal No. 10/12 Page 14 of 29 construction(s) of additional dwelling units; the learned counsel for the appellant has also referred to the report dated 08.09.2008 of the JE (Building), Civil Lines Zone, wherein it is mentioned that instead of seven dwelling units, nine dwelling units exist at the spot.
It is pertinent to mention here that on 14.10.2009 the said demolition order dated 20.11.2008 was set aside by the Ld. Appellant Tribunal, MCD.
Further, the Ld. Counsel for the appellant has referred to a status report dated 23.04.2009 wherein it was mentioned that the FAR utilized by the appellant is within the permissible limit and further that the permissible dwelling units were now increased to number 10 and that the appellant had made less numbers of dwelling units and further that the report suggests that the above owner/builder should bring the building as per the provisions of Master Plan Delhi 2021 and the set backs should be clear/made clear of any type of infringement. The owner/builder should apply for the regularization/revision of the building plan as per policy.
5. Now, it all started with a notice/order dated 20.11.2008 MCD Appeal No. 10/12 Page 15 of 29 issued by the MCD against the owner/builder of property bearing no. 5A, Bhamashah Marg, Delhi110009, which referred to the deviations against the sanctioned building plan dated 10.06.2005 and construction of additional dwelling units. This issue was raised on the inspection carried out on 08.09.2008 by the MCD wherein 9 dwelling unit were stated to be in existence in the said plot which were more than 7 authorized by the sanctioned building plan. Now, the said demolition order dated 20.11.2008 did not speak of specific deviations against the sanctioned building plan and that as to what was the deviation and what was to be demolished. Thus the said demolition order dated 20.11.2009 was challenged in an appeal bearing no. 265/2008 and during the course of the proceedings, a joint inspection was carried out which rather showed that there were 5 dwelling units at the site and one dwelling unit at the adjacent block belonging to Sh. Arun Maitri. The owner was directed to get the existing plan prepared showing all the blocks along with detailed measurement and area chart. The Court was even not satisfied with this report as exact measurement was not given, so it MCD Appeal No. 10/12 Page 16 of 29 ordered for a fresh joint inspection and to report. Accordingly, the Assistant Engineer (Building), Civil Lines Zone submitted a report dated 23.09.2009 wherein the measurements were given and the said measurements were less as compared to the report dated 08.09.2008 of the Assistant Engineer which, per se, was the basis for the demolition order 20.11.2008.
6. Thus finding disparity in the reports and since the exact deviations were not mentioned in the demolition order, the following was observed by the Court of Sh. N.K. Goel, the then Ld. Appellate Tribunal MCD, Delhi, in appeal no. 265/ATMCD/2008 :
(a) The show cause notice to be issued u/s 343 or 345A of the Act must make specific mention as to which portion of the property in question is unauthorized, as to what is the approximate or alleged extent of construction and the area of unauthorized construction. If the show cause notice does not contain such details, the same is not a proper notice and the action, if any, taken on the basis of such an improper notice, is not legal and cannot be endorsed by the Tribunal or by the Court. (Reference was placed to MCD vs. Janki Prasad, 1972 MCD Appeal No. 10/12 Page 17 of 29 RLR 31 and Masonic Club vs. MCD & Ors., 91 (2001) DLT
149).
(b) The record of quasi judicial authority must clearly show that before issuing the demolition order and / or sealing order, the quasi judicial authority had, in fact, applied its mind to all the facts and followed the principles of natural justice which are enshrined and contained in these provisions. (Reference was made to M/s R.B. Shreeram Durga Prasad & Fatehchand Nursing Dass vs. Settlement Commissioner (I.T. & W.T.), AIR 1989 SC 1038).
The appeal was thus allowed and the impugned demolition order dated 20.11.2008 was set aside and the matter was remanded to the Dy. Commissioner, Civil Lines Zone of the MCD and the appellant was allowed to file a reply to the show cause notice. Accordingly the parties appeared before the Dy. Commissioner, MCD, and thereafter, the demolition order dated 17.06.2011 was passed.
Even the matter went to the Hon'ble High Court of Delhi and on 07.12.2010 while deciding WP(C) No. 12453/2009 titled as "RMG Builders & Developers Pvt. Ltd. vs. USG MCD Appeal No. 10/12 Page 18 of 29 Construction Pvt. Ltd. & Ors.", it was ordered by the Hon'ble High Court of Delhi that the MCD to deal with the remand proceedings after hearing all the parties and thereafter to make a reasoned order for demolition of unauthorized construction, if any, found in the property.
7. The hearing was conducted before the Executive Engineer (Building) wherein the appellant did not chose to file any reply. It was observed by the Executive Engineer that the department has already filed a factual status of the construction at the site before the Ld. Appellant Tribunal. The mutual sub devision of the plot, as has been done, does not confer any right on the owners to carry out the construction work in violation of the sanctioned plan and the sanctity of the sanctioned plan reckoning the same as one plot needs to be maintained as all the companies have failed to bring the construction within the ambit of the sanctioned building plan as there exists the deviations which are noncompoundable in nature and require rectification/demolition and since such deviations were not rectified/demolished, neither regularized, so the demolition order dated 17.06.2011 was passed directing the appellant to MCD Appeal No. 10/12 Page 19 of 29 demolish the aforesaid unauthorized construction, as reflected in the show cause notice under reference, within 2 months of the issuance of the demolition order dated 17.06.2011.
8. Now this demolition order dated 17.06.2011 refers to a show cause notice under reference, which is of dated 20.11.2008 and which already was quashed by the then Ld. Appellant Tribunal, MCD vide its Judgment dated 14.10.2009 in appeal bearing no. 265/2008. Hence, the foremost question is as to what was new in the demolition order dated 17.06.2011 since it yet again did not describe the deviations/unauthorized constructions etc. Against this demolition order dated 17.06.2011, the appeals were preferred by the appellant as well as by Dr. Lata Maitri which were registered as appeal nos. 342/AT/MCD/2011 and 350/AT/MCD/2011. However, both these appeals were dismissed vide common/impugned Judgment dated 18.06.2012 on the grounds already discussed herein above.
Against the said Judgment dated 18.06.2012, the appellant as well as Dr. Lata Maitri filed the instant appeal(s). However, vide Order dated 14.07.2014, the demolition order dated MCD Appeal No. 10/12 Page 20 of 29 17.06.2011 passed by the Executive Engineer and also the impugned Judgment dated 18.06.2012 of the Ld. MCD Tribunal, Delhi, qua Dr. Lata Maitri was set aside by my Ld. Predecessor as it was felt that no proper notice of the said demolition was issued to Dr. Lata Maitri by quasi judicial authority.
Now the question is : (a) whether the impugned demolition order dated 17.06.2011 had clarified the deviations, as were, the spirit of the Judgment dated 14.10.2009 passed in appeal bearing no. 265/2008; (b) whether the proper opportunity of being heard was afforded to the appellant by the quasi judicial authority and (c) whether the impugned Judgment and the demolition notice which were set aside qua Dr. Lata Maitri i.e. one of the appellants before the Ld. Appellate Tribunal, can be held to be proper against this appellant;
I would take (a) and (b) first. In this regard, I need to say that the demolition order dated 17.06.2011 is still silent with regard to the deviations made by the appellant in the property existing at the spot. The joint inspection report dated 23.04.2009 refers to the fact that the permissible FAR in the MCD Appeal No. 10/12 Page 21 of 29 property was 133.33 and the FAR achieved is 91 (approximately); that the owner/builder should bring the building as per the provisions of Master Plan of Delhi 2021; that the set backs should be cleared/made cleared of any type of infringement and that the owner/builder should apply for regularization / revision of the building plan as per the policy.
Though the demolition notice dated 17.06.2011 refers to the fact that the regularization was never applied by the appellant and the other two coowners, but it is an admitted fact that the MCD does not regularize such deviations unless and until all the occupants/owners sign such requests. Hence, on the one side, the MCD Tribunal has advised the appellant to apply for regularization of the deviations and on the other hand the MCD says that it cannot entertain such application, even if filed, since other owners do not agree to it.
Further, though the demolition order dated 17.06.2011 orders the appellant to demolish the unauthorized construction as reflected in the show cause notice under reference, but the impugned order dated 17.06.2011 is synonymous to the demolition order dated 20.11.2008 which stood set aside by the MCD Appeal No. 10/12 Page 22 of 29 Ld. Appellate Tribunal as stated above. Hence, the demolition order dated 17.06.2011, if seen in the light of the Judgment dated 14.10.2009 in appeal bearing no. 265/2008, is nothing new, but is similar to the earlier demolition order dated 20.11.2008.
Further more when the appellant had challenged the demolition order dated 17.06.2011 before the Ld. Appellate Tribunal, for reasons alleged in their appeal, the Tribunal rather gave its own reasoning in the impugned order saying that "it cannot be expected from the quasi judicial authority to give details of each and every deviation/unauthorized construction brick by brick and as M/s RMG Builders and Developers Pvt. Ltd./respondent no. 2 herein has placed on the record the sanctioned building plan showing the existing construction as well as super imposed plan so the shape, location, area and extent of deviation/unauthorized construction can be ascertained by executing officer while enforcing the impugned order at the site by taking help of sanctioned building plan and the super imposed plan produced by RMG and that there would be no difficulty in demolition.
MCD Appeal No. 10/12 Page 23 of 29
This observation per se needs to be set aside as the appeal filed by the appellant was in respect of the discrepancies in the demolition order dated 17.06.2011 and not for seeking a way for the MCD to execute the demolition order, more so, when such super imposed plan was filed by respondent no. 2, whose interest, admittedly, is adverse to that of the appellant.
Again at the cost of repetition, I would add that a bare reading of the demolition order dated 17.06.2011, yet again does not clarify the extent of deviations, as was directed in the Judgment dated 14.10.2009 passed by the Ld. Appellate Tribunal. Thus the directions dated 14.10.2009 of the Ld. Appellate Tribunal in appeal bearing no. 265/2008 were never met by the quasi judicial authority, but then the Ld. Appellate Tribunal, in appeals bearing nos. 342/2011 and 350/2011 rather gave its own opinion as to how demolition be executed.
To my mind, it was never the exercise of the Ld. Appellate Tribunal and rather it need to first find out if the impugned demolition order dated 17.06.2011 was in consonance with the Judgment dated 14.10.2009 of the learned Appellate Tribunal or not. To my mind, the demolition order dated 17.06.2011 was MCD Appeal No. 10/12 Page 24 of 29 nothing but a repetition of the earlier demolition order dated 20.11.2008 which stood quashed. Thus in these circumstances, proper opportunity to the appellant of being heard was thus never afforded by the quasi judicial authority. Hence, issue no.
(a) & (b) are decided accordingly.
However it cannot be said that the conduct of the appellant was overboard. The appellant had also violated the directions contained in the order dated 14.10.2009. Nevertheless as joint inspections were ordered by my learned Predecessor of this Court at the request of the parties, a liberty must be given to the appellant to counter such inspection reports dated 08.09.2008, 30.01.2009 & 09.07.2014. Henceforth all such inspection reports are directed to be treated as an integral part of initial show cause notice dated 11.11.2008 so as to remove any future confusion and to put an end to this controversy. Now, since the inspection reports are part of the judicial record, the appellant cannot deny its service. Hence, the reply, if any, be filed by the appellant to such show cause notice, as also to the reports, as above, within a week to explain its position qua deviations as shown in the joint inspection reports.
MCD Appeal No. 10/12 Page 25 of 29 If the appellant fails to file reply and / or fails to satisfy the quasi judicial authority that there exist no deviation or unauthorized construction then such deviations / unauthorized construction be ordered to be demolished by the quasi judicial authority. The entire proceedings before the quasi judicial authority be completed within three months from today as already there has been much delay and even on the fate of bona fide purchasers is hanging. Appellant is directed to take all possible objections so as to avoid future controversy in this regard. Any failure to reply / appear before such quasi judicial authority would debar the appellant to question the correctness of its proceedings or its order.
More so, qua issue no. (c), I need to add that once the demolition order dated 17.06.2011 was set aside by my learned Predecessor qua Dr. Lata Maitri/respondent no. 3 herein in another appeal, may be, on the ground that show cause notice was never served upon her, yet it is equally important to note that the deviations, if any, are joint deviations; as there is one sanctioned plan for the entire premises and that the deviations of the property of Dr. Lata Maitri and the appellant herein are MCD Appeal No. 10/12 Page 26 of 29 not separately given by the quasi judicial authority in its order dated 17.06.2011 and also in view of the fact that the FAR is consumed jointly by the appellant herein and Dr. Lata Maitri, so it would be most appropriate that once the quasi judicial authority has given fresh hearing to the erstwhile appellant Dr. Lata Maitri, the presence of the appellant herein is also necessary as it must also be given an opportunity to controvert the allegations which may have been made by Dr. Lata Maitri against the appellant, as her interest is also adverse to that of the appellant. Since the said proceedings before the quasi judicial authority pertain to one sanctioned plan and since the deviations are joint, so such proceedings cannot be separated once the demolition order dated 17.06.2011 is termed as bad in law qua Dr. Lata Maitri by my Ld. Predecessor.
More so, in its order dated 14.07.2011, my learned Predecessor has given an opportunity to Dr. Lata Maitri to file objections against joint inspections, so such an opportunity ought be given to this appellant. Now, it is reported that Dr. Lata Maitri has been granted protection by the MCD from demolition of unauthorized construction allegedly done by her, MCD Appeal No. 10/12 Page 27 of 29 till December 2017.
Thus in view of the above discussion, the impugned demolition order dated 17.06.2011 is set aside. The appellant is directed to appear before the Executive Engineer, MCD, on 12.10.2015. The appellant, admittedly, has been served with a show cause notice dated 11.11.2008 as also with joint inspection reports dated 08.09.2008, 30.01.2009 & 09.07.2014, hence those be also treated as an integral part of initial show cause notice so as to avoid further objections. This would rather take care of the submission made by the learned counsel for respondent no.1 viz., Delhi Municipal Corporation. The reply be filed by the appellant within a week.
The Executive Engineer, MCD is further directed to complete the proceedings within three months and in case the deviations from the sanctioned plan or unauthorized construction are found, the same be ordered to be demolished forthwith. The demolition order must contain an annexure showing list of deviations, if any, in the property of the appellant.
The appellants to maintain status quo of the title / MCD Appeal No. 10/12 Page 28 of 29 possession of flats for the period of two months till the decision aforesaid by the MCD. To this extent, the impugned judgment of the learned Appellant Tribunal, MCD is set aside.
9. With these observations, the present appeal stands disposed of. The parties are left to bear their own costs. Record of the Appellate Tribunal be returned alongwith an attested copy of the Judgment passed today. Appeal file be consigned to Record Room, after completing the necessary formalities. Copy of this Judgment be given to the parties.
Announced in the open Court
today i.e. 08.10.2015 (YOGESH KHANNA)
Distt. & Sessions Judge (N/W)
Rohini Courts, Delhi
MCD Appeal No. 10/12 Page 29 of 29